Chretien as Defender of Parliamentary Supremacy and the Notwithstanding Clause.

[Kirkhill]

Turned this bit up during a hunt for some other stuff.

Chretien was adamant that the Supreme Court should play second fiddle to Parliament. In that spirit the "notwithstanding clause", sect 33, is not a nuclear option but merely asserts the normal give and take between Parliament and the Courts that has been the tradition in the Anglosphere at least since 1688. I would argue that the supremacy debate actually precedes 1688 and that 1688 merely crafted a lasting recognition of the supremacy of Parliament.

During the resulting First Ministers conference in November 1981, two of the premiers, Allan Blakeney of Saskatchewan and Sterling Lyon of Manitoba, made it clear that their principal objection to the proposed Canadian Charter of Rights and Freedoms was that it undermined the ancient British tradition of parliamentary supremacy.<a href="Jean Chrétien - Wikipedia"><span>[</span>54<span>]</span></a> Ever since the Glorious Revolution of 1688, the principle had always been that Parliament was the supreme lawmaking body in the land, and both Blakeney and Lyon were concerned that the Charter would give too much power to the courts.

Chrétien was the chief negotiator of what would be called the "Kitchen Accord," an agreement which led to the agreement of nine provinces to patriation. In the Kitchen Accord, Chrétien, along with Attorneys-General Roy McMurtry of Ontario and Roy Romanow of Saskatchewan, devised the compromise of Section 33, the so-called "notwithstanding clause," allowing Parliament and provincial legislatures to overrule the courts in Charter cases.<a href="Jean Chrétien - Wikipedia"><span>[</span>54<span>]</span></a> Chrétien remembered that Trudeau "hated" the idea of Section 33 and that he had to tell him: "Pierre, if you don't take the notwithstanding clause, you don't have the Charter."<a href="Jean Chrétien - Wikipedia"><span>[</span>54<span>]</span></a> Trudeau only accepted Section 33 when Ontario Premier Bill Davis, one of only two premiers supporting the federal government (Richard Hatfield of New Brunswick being the other), phoned him to say he would not support Trudeau in London if Trudeau did not accept Section 33, which Chrétien remembered changed Trudeau's attitude completely.<a href="Jean Chrétien - Wikipedia"><span>[</span>55<span>]</span></a> In a 2012 interview, Chrétien defended the controversial Section 33, saying: "Because some would argue that in a society the elected people have to be supreme — not judges — and I subscribe to that. Look at what happened in the United States where the judges reign according to their so-called philosophy. That is not the tradition here."<a href="Jean Chrétien - Wikipedia"><span>[</span>55<span>]</span></a> All of the English-speaking premiers accepted the compromise of Section 33, but Quebec Premier René Lévesque did not.

Jean Chrétien - Wikipedia

en.wikipedia.org

Curiously, to me, while Trudeau deferred to the Roman Church throughout his studies, seeking official approval to study at Harvard and to read prohibited books like The Wealth of Nations, Chretien seems to have been a bit more of a radical. When he wanted to marry Aline in Maurice Duplessis's Union Nationale Quebec of 1957 the local priest refused to give him permission.

Reflecting Chrétien's poor relations with the Catholic church, the local priest in Shawinigan, Father Auger, refused to marry Chrétien in his church, saying only bleus (blues, i.e. Union Nationale supporters) were welcome in his church and rouges (reds, i.e. Liberals) were not.<a href="Jean Chrétien - Wikipedia"><span>[</span>6<span>]</span></a>

Le ciel est bleu. L'enfer est rouge. Heaven is bleu (Union Nationale). Hell is red (Liberal).

 

[GK .Dundas]

Turned this bit up during a hunt for some other stuff.

Chretien was adamant that the Supreme Court should play second fiddle to Parliament. In that spirit the "notwithstanding clause", sect 33, is not a nuclear option but merely asserts the normal give and take between Parliament and the Courts that has been the tradition in the Anglosphere at least since 1688. I would argue that the supremacy debate actually precedes 1688 and that 1688 merely crafted a lasting recognition of the supremacy of Parliament.

Jean Chrétien - Wikipedia

en.wikipedia.org

Curiously, to me, while Trudeau deferred to the Roman Church throughout his studies, seeking official approval to study at Harvard and to read prohibited books like The Wealth of Nations, Chretien seems to have been a bit more of a radical. When he wanted to marry Aline in Maurice Duplessis's Union Nationale Quebec of 1957 the local priest refused to give him permission.



Le ciel est bleu. L'enfer est rouge. Heaven is bleu (Union Nationale). Hell is red (Liberal).

Holy F**k !!
I am actually having trouble wrapping my head around this.

 

[The Bread Guy]

... Le ciel est bleu. L'enfer est rouge. Heaven is bleu (Union Nationale). Hell is red (Liberal).

Oh yeah, known to peek out more than usual, say, during the Spanish Civil War (source) ....

... The Quebec ideological landscape during the 1930s was hostile to any leftist ideologies. Political, social, and particularly religious elites were vehemently anti-communist. The Catholic Church, which was a key political and social actor in Quebec at the time, embraced the anti-communism which was predominant within the church worldwide. During this period of economic and ideological turmoil, the Catholic Church and political and social elites supported Franco. Quebec elites leaned towards Franco because they were concerned by the economic devastation that the Great Depression had brought. Fearing that communists would weaponize this economic misery to foment dissent and revolution, the Catholic church and lay elites opposed them. Repression was an absolute necessity since communism constituted a social and national threat ...

More from a masters thesis (source)

An analysis of the editorials and articles of ten Montreal newspapers towards the Spanish Civil War. The author contends that, contrary to popular conception, not all Quebec Francophone newspapers supported Spain’s General Francisco Franco, nor did all the province’s Anglophone press support the cause of the Spanish Popular Front. The author argues that support for General Franco and the Spanish Republic in Montreal transcended linguistic lines, and cleavages other than language, such as religion, ideology and social class, influenced public opinion towards the war. The English language newspapers the author examined that were the pro-Franco publlcatlons were the Montreal Standard and the Montreal Star; and the pro-Loyalists paper, the McGill Daily.

I've heard eighth- or ninth-hand versions of Quebec volunteers fighting on the Franco side, but am still hunting down anything firm on that, so it should be considered no more than rumbling/rumours.

 

[Edward Campbell]

I recommend this to anyone who is curious about the Glorious Revolution: https://www.amazon.com/Our-First-Re...15&sprefix=our+first+revolution,aps,79&sr=8-1

 

[Kirkhill]

I would also recommend "The Cousins' Wars" which links modern politics on a continuum with the Wars of the Three Kingdoms (Scots, English and Irish Civil Wars), The Jacobite Wars, The American War of Independence and the American Civil War.

https://www.amazon.ca/Cousins-Wars-Religion-Politics-Anglo-America/dp/0465013708

One thing I would encourage everyone to remember was that in the 1600s modern divisions made no sense. There were protestants in France and Britain. There were catholics in France and Britain. France became the champion for a particular style of catholicism. Britain became the champion for a particular style of protestantism. French catholics fought each other and the Pope. British protestants fought each other. Ireland had been divided between the catholics of St Columba (Ulster and Scotland - Greek Rites) and those of St David of Wales (Roman Rites) long before the English, Tudors, Normans or even the Vikings.

You look at those ancient kaleidoscopes and you can see any picture you want.

 

[Kirkhill]

Holy F**k !!
I am actually having trouble wrapping my head around this.

I keep recommending this book

https://www.amazon.ca/Young-Trudeau-1919-1944-Quebec-Father/dp/0771067496

This sequel is also insightful

https://www.amazon.ca/Trudeau-Transformed-Shaping-Statesman-1944-1965/dp/0771051271

The books give as much insight into the people and times surrounding Trudeau as into Trudeau himself. They also, in my opinion, go a long way to describe the evolution of the Ultramontanist Continent, and Quebec, to the modern EU and the reasons why it is at odds with liberal democracy.

 

[Kirkhill]

Opinion: It's the judges, not the Charter, that have turned Canada into a lawfare nation

A cure is badly needed to return the balance between the courts and Parliament

nationalpost.com

A MacDonald Laurier Institute call for the restoration of Westminster parliamentary supremacy.

The cross-cultural nature of the four authors is of note.

Can it really be true that even law schools don't teach the history of our constitution and laws?

How are lawyers supposed to argue successfully in a system based on precedence if they don't understand the precedents?

 

[FJAG]

Can it really be true that even law schools don't teach the history of our constitution and laws?

I started first year in 1981 and don't recall much in the way of core constitutional law. It was all on the periphery to other subjects. When the Charter was passed we delved into it pretty quickly but again, not so much into the prior concepts.

How are lawyers supposed to argue successfully in a system based on precedence if they don't understand the precedents?

You're mistaking precedents as a concept with archaic legal concepts which have only limited value these days. The one thing about the common law is that it matures with societies' views and values. Very rarely do you need to go back more than ten years to find the relevant precedents that bear on a specific case. When a lawyer needs to go back to a 1670s statute or a 1772 court decision, it's usually a sure sign that he has a losing hand to play.

 

[Kirkhill]

I started first year in 1981 and don't recall much in the way of core constitutional law. It was all on the periphery to other subjects. When the Charter was passed we delved into it pretty quickly but again, not so much into the prior concepts.

You're mistaking precedents as a concept with archaic legal concepts which have only limited value these days. The one thing about the common law is that it matures with societies' views and values. Very rarely do you need to go back more than ten years to find the relevant precedents that bear on a specific case. When a lawyer needs to go back to a 1670s statute or a 1772 court decision, it's usually a sure sign that he has a losing hand to play.

It may be a poor hand but how do you understand the evolution of the modern law if you don't understand what has been tried and discarded as well as what has been retained?

How do you know if a solution is truly novel or required?

How do you know if a discarded solution may be appropriate for this era though it wasn't previously appropriate?

History matters. History is culture and culture matters.

 

[AmmoTech90]

History matters. History is culture and culture matters.

Culture changes. If it doesn't your culture consists of Ea Nasir memes.

 

[Kirkhill]

Culture changes. If it doesn't your culture consists of Ea Nasir memes.

Absolutely culture changes. I happen to be of the opinion that it is important to know how we got here.

Maybe that will prevent some do overs.

 

[rmc_wannabe]

It may be a poor hand but how do you understand the evolution of the modern law if you don't understand what has been tried and discarded as well as what has been retained?

How do you know if a solution is truly novel or required?

How do you know if a discarded solution may be appropriate for this era though it wasn't previously appropriate?

History matters. History is culture and culture matters.

History is art and not science. History is subjective and can be adapted as our understanding of it expands or, in some cases, becomes irrelevant.

Law is an art, and very much malleable in the same way History is. Precedent is useful, but is restrictive to the context and conditions of the time of occurance.

We can look at a prime example of this right now with the various interpretations and application of the U.S. Constitution. I didn't think I'd ever see a Third Amendment application in 2025, but it seems ICE is learning this the hard way. Meanwhile the NRA is now seeing that Trump sure as shit will infringe on the Second Amendment, and there have been many folks who have been doxxed and fired for expressing an opinion on a podcast bro's death, regardless of the First Amendment protections that Charlie Kirk pretended to champion.

Our Charter has the luxury of being relatively young, and thus, we have (or ought to have) learned some of the hard lessons of others while drafting it. The notwithstanding clause was a political gamble that has, upto this point, paid off.

Right now, however, I think seeing the various and arbitrary reasons for invoking it has given this SCC challenge a huge importance

 

[Kirkhill]

History is art and not science. History is subjective and can be adapted as our understanding of it expands or, in some cases, becomes irrelevant.

Law is an art, and very much malleable in the same way History is. Precedent is useful, but is restrictive to the context and conditions of the time of occurance.

We can look at a prime example of this right now with the various interpretations and application of the U.S. Constitution. I didn't think I'd ever see a Third Amendment application in 2025, but it seems ICE is learning this the hard way. Meanwhile the NRA is now seeing that Trump sure as shit will infringe on the Second Amendment, and there have been many folks who have been doxxed and fired for expressing an opinion on a podcast bro's death, regardless of the First Amendment protections that Charlie Kirk pretended to champion.

Our Charter has the luxury of being relatively young, and thus, we have (or ought to have) learned some of the hard lessons of others while drafting it. The notwithstanding clause was a political gamble that has, upto this point, paid off.

Right now, however, I think seeing the various and arbitrary reasons for invoking it has given this SCC challenge a huge importance

I agree with all you say, especially about art. Governance is an art.

And the key to good governance is retaining the consent of the governed, which demands flexibility.

Rumours are floating that France's Fifth Republic has reached the limits of its constitution and that a rewrite is due.

 

[AmmoTech90]

Maybe that will prevent some do overs.

Maybe we need do overs because the lessons learnt in the past were not always great, regard of they were adopted or not.

 

[Kirkhill]

Maybe we need do overs because the lessons learnt in the past were not always great, regard of they were adopted or not.

Not impossible.

But do you want to run a control system without taking heed of the effect of past actions? Why else are datalogger so popular?

I admit that circumstances and situations change over time so repeating past actions may not result in repeating past successes. But if the result differs you have a firm place from which to start your analysis and correct.